The Jewish State and the Rights of Minorities

On June 20 and November 29, the Constitution, Law and Justice Committee met to discuss protection of minority rights in the proposed constitution.

The main issues discussed at these meetings were:

Israel’s “Jewish and democratic” character Participation and inclusion of Arabs in the constitutional process Minority (particularly Arab) rights in the constitution

Committee Chairman MK Michael Eitan (Likud) opened the meeting with a brief overview of the attempt to draft a constitution in 1949, and then described the Committee’s current attempt. Over the course of some 30 meetings, MK Eitan said, the Committee has completed all initial discussions dealing with the governmental issues in the constitution, and drafts on the various options discussed are now being prepared. The present meeting marks the first discussion of the Bill of Rights section.

MK Eitan stressed that the fact that the first meeting on the Bill of Rights deals with minority rights emphasizes the extreme importance of this topic. MK Eitan quoted from the writings of Ze’ev Jabotinsky dealing with the protection of minority rights in the Jewish state, and expressed the wish that Israel continue Jabotinsky’s legacy.

President of Israel Moshe Katsav commended the constitutional project and expressed his hope for its success. He praised Israeli democracy and stressed the need to protect it and entrench it in the constitution, but noted the difficulties and challenges facing the democracy. He expressed the belief that the Jewish and the democratic elements of Israel are inseparable, and saw no contradiction between the two, or between the safeguarding of Israel’s national character and the safeguarding of full rights for minorities – without which there can be no democracy. He called Israel a state of all its citizens, but said it should not change the law of return, its flag, or its anthem.

Jew and Arabs in the Jewish Democracy; Defining the state in the Constitution; Jewish vs. Democratic; Historical Definition of the State vs. Minority Rights

Jews and Arabs in the Jewish democracy Knesset Speaker MK Reuven Rivlin (Likud) called Israel an unparalleled democracy, but warned of the ideological gaps between mainstream Jewish-Israelis and the Arab minority, such as affiliation with the national anthem. He recommended defining the terms “Jewish” and “democracy.”

Dr. Adel Mana’, a historian at the Van Leer Institute, asserted that a constitution is not simply a list of Basic Laws; it will include important statements on the character and identity of the state, and will address the question of to whom the state belongs. He assumed that parts of the Declaration of Independence will be incorporated into the constitution, and that the state will be defined as Jewish before democratic. Merely calling Israel a “state of all its citizens,” he said, is insufficient. The words must be entrenched in the constitution. The constitution must not frustrate 20% of the state, so its protection of human and minority rights is very important. Former Chief Justice of the Supreme Court Meir Shamgar pointed out that Israel’s Declaration of Independence is important, symbolic, and expresses many things about Israel’s national character; but it has no legal standing or constitutional power.

MK Avraham Burg (Labor) questioned the co-existence of the terms “Jewish” and “democracy” when describing the State of Israel. He considered two questions: 1.Where does democracy end and theocracy begin? 2.Where does Judaism end and democracy begin?

"What is the state?" Burg asked. Is it an instrument of the people to take care of public issues, or is it a conceptual, ideological expression of its citizens? This is a question the constitution cannot ignore. The definition of the state as Jewish has its roots in religion. MK Burg said that Judaism can only come to its full fruition in Israel, and there is no other place for a Jew to express his or her Judaism and independence in that sense. However, he opined, “Jewish” and “democratic” are as incomparable as apples and oranges. Democracy is a method based on liberties that say that all is permitted except that which is forbidden. Judaism, on the other hand, is a system of responsibilities, which says that all is forbidden except that which is permitted. The Committee must recognize the inherent contradiction in the constitution if it says Israel can be simultaneously Jewish and democratic.

“Jewish democracy”: An Arab perspective is not yet possible
Dr. Michael Karayanni of the Hebrew University explained to the Committee that the Arabs cannot possibly give their reaction to the term “Jewish democracy” because the term has not yet been clarified. Although Judaism in the state can have positive aspects, he said that Arabs have only encountered the negative.

MK Whbee: No objection to “Jewish” state
As a member of an Israeli minority [Druze], MK Majalli Whbee (Likud) stated that he derives no benefit from the Jewish character of the state, but he does not ask that the Jewish character be removed. He said that he has no interest in standing in the way of the constitution’s inclusion of the Jewish nature of Israel.

Jewish nationalism over democracy and religion
MK Reshef Chayne (Shinui) opined that “Jewish-democratic” should not be the highest characteristic describing Israel. The first, main attribute should be Israel’s identity as the national home of the Jewish nation, and the Jewish nature of Israel should be defined by the cultural life in Israel. The second-highest characteristic should be that of a Jewish democracy.

The Jewish aspects in the state, such as language, symbols, and holidays, are inseparable from Israel, as are democracy and equality. In the event of a conflict between democracy and Judaism, MK Chayne said that the Jewish nationalism should win. In all other cases, equality must come first. Nationalism comes before religion.

Jewish over democratic
MK Ronnie Bar-On (Likud) explained that the word order of the term “Jewish and democratic” is neither coincidental nor temporary. Israel is firstly Jewish. This is the only place the Jewish people have ever had self-determination. Second, Israel is democratic because, after being Jewish, it is a place where minorities are given the right to equality, he said.

Israel’s Jewish character must be maintained
MK Gideon Sa’ar (Likud) said that Israel must maintain its Jewish character in order to prevent a “state and a half solution” situation in which there would be one state which is fully Palestinian and one state which is half-Jewish.

“The state of the Jewish people”
MK Eti Livni (Shinui) preferred the phrase “State of the Jewish people” to “Jewish state.” There are certain issues and bodies that are clearly at the center of the Israel’s Jewish nature (the law of return, symbols and flags, the Jewish Agency, the Israel Lands Authority, etc.) but most of the major issues are democratic matters. These include giving more rights to minorities. Giving more lands to Arabs, for instance, is a democratic issue, and has naught to do with the Jewishness of the state.

“A state of all its citizens”
MK Chaim Oron (Yachad) said that this argument is not just between Jews and Arabs; it involves all Israelis. He refused to give either “Jewish” or “democratic” priority in characterizing Israel, lest one be used to narrow the scope of the other. He recommended that Israel be firstly Jewish and democratic, and secondly a state of all its citizens. In the case of a conflict between the first two concepts, Jewish and democratic compromise when there are group rights at stake.

Professor Asher Maoz of Tel Aviv University warned that “a state of all its citizens” is a Trojan horse. He asked why there could be a Palestinian state but not a Jewish state?

The “Jewish and democratic” definition of the state
MK Jamal Zachalka (National Democratic Assembly) called for greater Arab involvement in the constitutional process. We cannot afford, he said, to ignore even the smallest opportunity to improve the country for our children. He continued by stating that we need to reconsider the Jewish-democratic definition as well as the laws preventing MKs from objecting to Israel as a Jewish democratic state.

Professor Ruth Gavison of the Hebrew University Law School stated that defining the nature of the Jewish state is a vital issue that must be worked though. (Is it just a nation with a Jewish majority?) At the same time a democracy must allow anyone, including the majority, to change the character of the state. MK Ahmad Tibi (Hadash-Ta`al) agreed, complaining that Jewish and democratic is inherently unequal, that the status quo of the state of Israel as Jewish and democratic means that it is democratic for Jews, and Jewish for Arabs. Jabarin added that he prefers Israel’s Jewish nature to derive solely from the Jews’ perhaps temporary numerical superiority. Professor Gavison continued by stating that the majority may use many means – legal, constitutional, pr, educational, etc. – to protect itself. Furthermore, she believes the majority must protect individual and minority rights but notes the inescapable paradox: that Israel was established in order to protect the individual and collective rights of only the Jewish people.

Inclusion of Arabs
Dr. Jafar Farah, director of the Mossawa Center for the advancement of Israeli Arab society emphasized that the constitutional debate requires the involvement of the Arab political leadership, including the supreme follow-up committee. However, he stated, it is important to clarify that this is in order to influence, not simply to fulfill a duty. He concluded by adding that we must include Arab social leaders the same way we use Jewish ones; the involvement of the Israel Democracy Institute does not satisfy both needs.

1. Internal refugees: The 250,000 citizens displaced in 1948 who cannot return to their homes.
2. The problematic role of the Jewish National Fund in distributing land for the exclusive development of Jewish communities.
3. The Israel Lands Authority’s practice of fighting the Bedouins for their land in the Negev with the left hand while distributing land to the kibbutzim with the right hand.
4. Symbols: Should/Can the Jews in Israel impose their symbols on the Arabs?

Constitution by broad consensus
Yussef Jabarin, an advisor to Adalah, the Legal Center for Arab Minority Rights in Israel, questioned the notion of a “Constitution by broad consensus.” Is this a consensus of the Jews, he asked, or a consensus of the citizens? He stated that it is not too late to begin an honest dialog with Arabs. He suggested the committee conduct a debate of this sort in the offices of the supreme follow-up committee.

Collective historical rights
Dr. Farih raised the issue of a collective Arab historical status in the country. He argued that “Collective rights are historical rights,” stressing the need for affirmative action in the budget, education and other spheres. He added that human rights violations, racism, and discrimination take place despite laws in Israel to the contrary. He emphasized the need to focus not only on a constitution that protects minority rights, but a legal system that will effectively enforce these rights.

The constitution must grant a sense of belonging to the Arabs and protect their rights
Dr. Mana’ reminded the committee that because Arabs are an indigenous minority, their frustration is harsher and more complex than many other groups’. Most liberal democracies contain no real contradiction between the citizens’ and the state’s identity; but Israel is not that sort of regime. The definition of the state as “Jewish” frustrates the Arabs, and must be minimized. Where is the secular definition of “Jewishness”? Many people will prefer the current status quo rather than accept the constitution without certain issues they consider central. He suggested weighing the advantages against the disadvantages of the proposed constitution vis-א-vis the Arab minority. What price will Arabs pay for legitimizing a constitution that will entrench the Jewish majority domination over the Arab minority? What will they gain?

Dr. Karayanni pointed out that there are different “spheres of citizenship” in Israel. The Jews identify with the public holidays and the flag. Minorities may have their own feelings about their connection to the state. However, the institution of citizenship needs to be maintained and strengthened. Dr. Karayanni suggested some general, all-inclusive public spheres of citizenship that express a commonality between Jews and Arabs – a public holiday, for example, that all can celebrate. The constitution, if it safeguards communal rights for all, can be such a sphere.

Communal rights in addition to individual rights
Dr. Karayanni offered three reasons why communal rights should be extended to the Arabs as a group, in addition to rights of the individual.

1. Since Jews in Israel have the ability to express their communal right to self-definition, the minority should have the same, equal right.
2. The minority needs group rights in order to be a real player in democracy. The right to organize and define itself as a group is necessary to level the democratic playing field.
3. The individual in a democratic system needs to live in a group setting. An Arab individual needs an Arab group around him or her in order to live as an Arab.

Dr. Karayanni brought up Supreme Court Justice Cheshin’s minority opinion in the Adalah case of 2003 in which Arab civil rights organizations sued Tel Aviv-Jaffa, Ramle, Lod, Akka (Acre), and Natseret Illit, demanding they add Arabic to all traffic, warning and other informational signs in their jurisdiction. (HCJ 4112/99) Cheshin’s opinion states that Israel has recognized Arabs’ individual rights, but not yet their communal rights. MK Rivlin interjected and asked about the 1949 law establishing Arabic as an official language, to which Dr. Karayanni added that as an Arab, he feels he belongs in Israel when he sees Arabic on signage throughout the entire country. MK Nissim Ze’ev (Shas) claimed that the Jews feel less belonging when they see Arabic signage.

MK Whbee’s (Likud) recommendation
As a democratic state, all individuals must be given equal individual rights. But in order to promote the constitution, which is especially important to minorities, MK Whbee suggested compromising on some communal rights. Israel must fine-tune minority rights to fit the particular character of the state of Israel. There are two existing models for forming minorities’ group rights. One integrates the majority and minorities, and one separates them. In Canada, Switzerland and Belgium, groups share power; but this cannot be implemented in Israel because the Jews are not interested in relinquishing their group rights as a majority.

MK Whbee recommended the substantive autonomy approach, in which the minority is autonomous in all aspects of its internal affairs. This, he thought, should be accompanied by full individual equality.

National rights vs. group rights
MK Chayne (Shinui) inquired about the national rights of the Palestinians as a nation. MK Eitan clarified the issue, saying the Palestinians have group rights as a minority, not national rights as a Palestinian nation. MK Chayne added that all individual rights must be safeguarded in the constitution, but the national aspirations and rights should be given to the Palestinians – in a Palestinian state. And he expects the Palestinian state to give the same rights to Jews that are given to Palestinians in Israel.

Limit collective and national rights
MK Gideon Sa’ar (Likud) told the Committee that he was skeptical of the constitution allowing collective rights to Arabs, with the possible exception of the right to proportional representation. He was concerned about the aspect of collective rights which could become an instrument of Arab separatism in Israel. He warned that minorities may take too much advantage of the term “minority rights”. It should not be all take and no give; the Arabs must speak of responsibilities as well as of rights if they want to be equal partners.

MK Sa’ar said that he did not support national rights of a minority. He thought that Arabic should cease to be an official language, because that status is a relic from a time when Arabs were the majority. It is not Israel’s place to safeguard these rights, though the Arab minority has the right to work towards them. [MK Sa’ar has suggested making Hebrew the only official language, with Arabic granted special status in the constitution.]

Arab rights and the Israeli-Palestinian Conflict
MK Nissim Ze’ev (Shas) said that these issues are tied up in the fact that we are still in an armed conflict, and as a result of the fear caused by this conflict there will be hesitations in the allowances of rights as well as a reduction in rights. He also added that there exists an additional fear that the Arab minority might change the Jewish character of the state.

Dr. Mana’ voiced the opinion that equality between Arabs and Jews will not exist before Israel settles the Palestinian issue and ends its occupation and killing. The most important element in establishing equality is a change in the politics and mindset of the majority of Israel. But a constitution with the proper content could help bring about equality.

It is possible to have minority rights while maintaining Israel’s Jewishness?
MK Tamir (Labor-Meimad) explained that Israel could afford to extend more equality rights to minorities without sacrificing its Jewish character. For example, equality in distribution of resources is irrelevant to Israel’s Jewishness. In fact, MK Tamir thought that a Jewish state should be better than most states at equal distribution of resources to its minorities. Israel currently gives its Arab minority many things that minorities in other nations do not have, including linguistic autonomy and media outlets, and this could be the basis of the establishment of rights for the Arab minority. She said that the establishment of a Palestinian state should effect no change.

Tensions between collective and individual rights
Professor Gavison brought forth a number of considerations:

1. There are groups other than Arabs that deserve collective rights in Israel, including the Haredim. (MK Burg voiced a similar sentiment in the first meeting, asking those attending to consider foreign workers, Russian immigrants, and other non-Jews. He said that Jews, having been minorities in so many places, must be very sensitive to this issue). Additionally, Gavison said, we must remember that recognizing Jewish and Arab collective rights also requires a recognition of women’s rights, especially Muslim women’s rights, be they religious or secular.
2. The court – an undemocratic body – will ultimately interpret the constitution. We must not “[W]ake up one morning to find that we have a rigid constitution without having known or seen or read or been asked for our opinion about it." Such a constitution, says Gavison, is nothing less than coercion by a narrow elite seeking to impose a homogenous set of values, enforced by the Supreme Court on a very heterogenous population.
3. Every debate on rights involves contradictions between collective and Individual rights. To frame the issue of collective and individual rights, Gavison cited Supreme Court Justice Mishael Cheshin’s minority opinion from Adalah v. Tel Aviv-Jaffa et al. Professor Gavison stated that Supreme Court Chief Justice Aharon Barak awarded the Arab minority only in a partial way, in that Barak’s reasoning was limited to the individual rights of Arabs to Arabic signage. Cheshin disagreed that this was a right of the Arab minority. He thought it was important, but not to be qualified as a right, as something the Arabs can demand from the courts. Jabarin, meanwhile, did not accept that the ruling in Adalah helped the Arabs. “Why do the signs say the same Hebrew word in Arabic letters?” he asked. Jabarin made the additional point that the Arab minority is not an immigrant population, but a native one on whom Israel was foisted and thus, deserves special status and recognition of their historical rights.

Professor Gavison argued that the majority is bound to protect the rights of the minority, but not every interest of the minority is its right. We must differentiate between the minority’s rights and its desires, Gavison explained, going on to explain what minority rights in Israel could look like at a practical level:

• The right of a group to defend itself from being swallowed up by the majority. This translates into separate educational systems (Professor Asher Maoz of Tel Aviv University agreed on this point) with Arabic and Hebrew as well as important elements of Arabic culture (including, for example, teaching about the naqba, or catastrophe, suffered by Arabs displaced in 1948, or the poetry of Mahmoud Darwish). However this does not mean total autonomy in these areas.
• The Official language of the State should be Hebrew. Arabic should be strengthened in practice, but weakened in rights. She argued that the Arab fight over language is symbolic and important, but cannot be defined as a right.
• Arabs have a right to proportional representation. The question of how Arab representatives are chosen is cardinal.

Education of Arab children
Professor Gavison articulated 3 points regarding the education of Arab children:

• We need to have discussions regarding how proud Arabs will teach their children to be proud Arab citizens in Israel.
• She noted that Jews are a majority in Israel, but a minority in the Middle East and in the world, and that they need a place where they have self-determination. A child who is taught that the Jewish state is racist and illegitimate, believing he is living under an illegitimate system, will never grow up to be a good citizen.
• Arabs must accept that Israel is legitimate, even if perhaps temporary.

Fear of a constitution which disadvantages the already disenfranchised
MK Jamal Zachalka (National Democratic Assembly) stated that almost all Arab parties want a democratic constitution, but that he prefers the status quo to a constitution that enables discrimination, specifically against the Arabs. This, he stated, could happen given the current balance of power in the Knesset.

Can a Jewish state include full expression of minority rights?
MK Zachalka said that collective rights cannot be debated in a vacuum. It is important, he said, that equality be given a prominent place in the constitution, not simply half a sentence. He could not consider supporting a constitutional definition of Israel as a Jewish state, he said, even in exchange for an entrenched equality clause; the very definition of the Jewish state, he explained, robs the Arab of his rights. MK Eitan interrupted to ask whether Zachalka would be willing to accept a Jewish State in return for an actual increase in rights. Would he rather suffer, he queried, than concede the symbolism of the “Jewish State” label? MK Zachalka responded by saying that symbols are the last thing he wants; that he wants political rights. He suggested Israel learn from international accords and foreign arrangements wherein minority groups are better protected. He concluded by stating that, “We cannot allow a tyranny of the majority. We want full citizenship.”

The constitution is insufficient to safeguard rights and equality
Dr. Mana’ said that even a good constitution cannot ensure the protection of minority rights because it cannot monitor their implementation. Professor Ruth Gavison agreed, stating that the advantage of the constitution is that it removes certain issues from the hands of the legislator. She spoke out against allowing the court – an undemocratic body – to be the final arbiter on issues so central to Israeli democracy.

Mana’ complained, however, that Basic Laws and the High Court of Justice still protect the existing Jewish domination and the extant consensus. In the cases where the Arab rights were protected, the HCJ still did not stand fully behind the Arabs and their rights. Much more than a written constitution is needed to implement and enforce minority rights.

MK Avraham Ravitz (Yahdut Hatorah) made two central claims:

1. In all democracies, minorities are often disenfranchised by the majority’s rule. Jewish law, on the other hand, protects minorities better.
2. Ravitz compared the effects of Israeli democracy on Arabs and Haredim.

MK Ravitz argued that the nature of democratic states is to grant the majority rule. He added that ”If it is a good majority, it will be considerate of the minority. In comparing the situation of the Ultra-Orthodox population to the Arabs, he cited Haredi kindergartens, whose budgets were cut in 2005 to 15% below that of other kindergartens. When pressed, he said, the Minister of Education explained she had to make budget cuts, and she cut the Haredi preschool budget “Because I could,” Ravitz quoted. “It was easy”. Ravitz argued that this was an inherent property of a democratic state, not of a Jewish state. He stated that the Torah instructs us in how to treat each human being, and that if we actually lived in a state based on Torah values, the majority would be compelled by religious code to be more considerate of non-Jewish minorities. He called the problem a human and moral one, of people everywhere, to decide how to treat citizens, to see whether they create democratic violence or simple fairness.

The purpose of the constitution
Professor Gavison explained that the constitution is not meant to, and would not succeed in, answering the questions discussed at the meeting. The constitution is meant to serve people with widely divergent views. The point of a constitution is not to create agreement, but to define the rules of the game and the shared values of a society in which much disagreement takes place.

Principle of equality in the constitution
There was wide agreement at the table that Israel is responsible for full equality for all individuals in the state. However, Professor Gavison said that the constitution is not necessary or sufficient for this responsibility. She addressed questions about the meaning of the right to equality, and the difference between discrimination and the legitimate advancement of the interests of the majority. The question, for instance, of how we distribute resources is one of policy and not of rights. The executive branch forms policy according to a program which is not always representative of all or of the majority. We must differentiate between the right to non-discrimination, and policy. All policies give preference to some over others, but a policy is only illegitimate if it discriminates unfairly. This is opposed to justified differentiation because of scarcity of resources.

Collective and national rights of Arabs
What kind of collective rights do the Arabs currently have? Clearly some, Professor Gavison answered, since Israel mostly meets the standards of the European Human Rights Declaration. But should Israel recognize the Arab national minority? She emphasized that this question is intimately connected to Israel’s approach to the Israeli-Palestinian conflict.

There are several definitions of self-determination, Professor Gavison explained. It is possible and correct to say that only the Jews have the right of state self-determination in Israel. But there are also rights to self-determination that are sub-state or sub-national, like the ones that Israel gives to the ultra-orthodox.

In Adalah v. Tel-Aviv Yafo (4112/99), Cheshin’s main question in his minority opinion on Arabic signage in mixed cities was: who decides? There must be a dialogue, and it cannot be done in the court, because the court gives only black-and-white answers.

Integration of Jews and Arabs
Professor Gavison agreed with Dr. Mana’s recommendation to establish a single day of celebration for all Israeli citizens, to create a shared institution between the Jewish majority and the Arab minority. She expressed her hope that Arabs be accepted as members of Israeli society and not as a fifth column. But she realized that the present situation makes this difficult.

Professor Gavison explained that the constitution cannot solve all of Israel’s problems. It is meant to be a framework, a partial solution, but not a full one. It should acknowledge that there are going to be conflicts henceforth. The constitution should not look like a defining document and must not appear to advance any party’s ideology. It must allow all views to continue to be heard and debate to occur.

The court should not provide the answers to Israel’s most central questions; that is the role of the democratic legislature. The United States Supreme Court’s decision in Brown vs. The Board of Education was less significant than the civil rights legislation which followed it. The constitution must not be the answer; it must be the framework. The constitution will not solve Israel’s problems. The people must solve Israel’s problems.